Monday, 26 July 2010


I arrived in Nairobi at an interesting time for Kenyan politics. On August 4th, the Kenyan people will vote in a national referendum to decide whether to adopt a new draft Constitution.

Nairobi is buzzing with talk abour the vote: billboards (mostly pro-Yes) are everywhere, senior government officials have left to lead rallies in the countryside, radio shows talk about it constantly, and people debate the pros and cons of the new document. I talk with Kenyans about the Constitution many times each day. Most have strong reasons for or against it, but very few are willing to predict the sort of civil unrest that the vote with cause.

You might remember the ugly post-election violence in Kenya in 2007. Following the official declaration that Mwai Kibaki had won the Presidential election, ethnic groups allied with the insurgent (current Prime Minister) Raila Odinga staged a large number of non-violent and violent protests. They complained that the other side has rigged the election, a charge echoed by most international observers. The violence took different shapes in different parts of the country, with ethnic minorities from one party's camp being harrassed and attacked in areas dominated by ethnic groups aligned with the other candidate. The violence finally abated when Kibaki's and Odinga's factions agreed to an extra-Constitutional power sharing agreement with Kibaki as President and Odinga as Prime Minister. This arrangement was novel, but it was accepted by the courts primarily as a means to end the violence. As the conflict settled down, hundreds had been killed, thousands injured and tens of thousands displaced from their homes, particularly in slum areas of Nairboi such as Kibera.

Before even talking about the current Constitutional battles, it's important to put the 2007 violence in context.

Kenyan politics are different from those in many countries. As one of my Kenyan colleagues pointed out, it's impossible to peg political leaders as left-wing or right-wing, progressive or conservative, traditional or modern. Although national politicians have views on particular issues -- education, trade, healthcare, housing, crime -- their positions don't really affect their voter base. Rather, political affiliations in Kenya are almost exclusively tribal. Kenyan politicians have an infamous and unfortunate track record of diverting public resources to their own -- or affiliated -- ethnic groups. Analysts have noted, for instance, that when control of the Presidency shifts from one group to another, funding to schools and hospitals in geographic areas populated by opponent ethnic groups tended to drop significantly. In light of such practices, it's easy to see how Kenyans could be very skeptical about politics and about the validity of their leaders' intentions. As a result of the patronage politics, elections (especially Presidential elections) are extremely high stakes. If your candidate wins, educated partisan cronies can expect plum jobs and the common follower can look forward to increased funding for public services. If he loses, however, they can predict that resources will be diverted to ethnic groups that backed the winner. A lot of this is described in Michaela Wrong's bestseller "It's Our Turn to Eat" --

Combine high-stakes, patronage politics with endemic campaign corruption* and voter fraud and you can a lot of angry people at the polls.

It's an easy contrast with Tanzania, which has a drastically different political environment. Tanzania's post-independence leader, Julius Nyerere, had a very different vision for his country that his Kenyan contemporary Jomo Kenyatta. Nyerere had communistic ideals and believed that the natural mode of living for sub-Saharan Africans was a traditional, communal, family-centered village. He believed that the ideal economic mode of production was also the commune, a strategy which was not particularly effective for increasing agricultural output. Nyerere also stressed national unity - he oversaw the unification of Tanganyika and Zanzibar into modern-day Tanzania, promoted the use of Kiswahili as the official national language, and encouraged national Tanzanian identity over ethnic-tribal identities such as the Sukuma, Yao or Suba**.

If it's hard to say which approach is better, it seems obvious that the differences in vision between Jomo and Julius produced a real divergence between their countries. In Kenya, politics is contentious, tribal and high-stakes; in Tanzania, a single party - C.C.M. - has ruled the country since independence and political battles take place (when at all) around local parliamentary elections. In Kenya, people feel strong tribal identities and prefer to speak their native tongue or English (which they can do well); Tanzanians have embraced Swahili as a lingua franca but generally can't speak English well. Kenyans are (as a rule) entrepreneurial, competitive and trade-oriented; Tanzanians are more relaxed, more trapped by red tape and high tariffs, and less competitive within the region. Kenya performs significantly worse than Tanzania in terms of wealth and income inequality. (On land inequality: three families in Kenya each own 1 million acres of land. On income inequality: as measured by the UN's Gini coefficient index, a widely accepted indicator of income inequality, Tanzania has a 34.6 - in between France and Australia - while Kenya gets a 47.7, meaning that income distribution is more unequal than in the United States, and almost as unequal as Brazil).

Thanks to its more commercial orientation, Kenya seems to have come out ahead of Tanzania economically. In terms of politics, though, Kenya seems to have it bad: ethnic tension, tribal identities which override national unity and debate of issues, endemic corruption and substantial inequality in both land holding and income. As a function of these structural problems, political decisions (such as elections) can lead to violent results, often along ethnic lines.

Now that Kenya is moving full swing into the national referendum to approve the new Constitution, who knows how things will shake out? The Constitution contains the usual sorts of provisions found in constitutions drafted since World War II. There are the usual things related to the branches of government, stronger separation powers, the right to vote, to free speech, etc. These aren't controversial. Like many African constitutions, this one protects so-called "second generation" or "affirmative" rights: healthcare, education, housing, fair wages, culture, and family life, among others. Although it's unlikely that the Government of Kenya could actually provide all those rights, no one is going to object to that sort of language.

Three parts of the Constitution have been the source of debate:
- Abortion. Abortion is currently illegal in Kenya and you can go to jail to performing one or undertaking one. The Constitution officially outlaws abortion but provides for a number of open-ended exceptions that many conservatives (primarily Catholics) think will increase access to abortions in Kenya.
- Kadhi (Islamic) courts. The Constitution provides for the official establishment of Kadhi, or Islamic courts in Muslim areas. It also provides for exceptions to certain provisions of the Bill of Rights for professed Muslims. Although Kadhi courts currently exist (with statutory, rather than Constitutional backing), you can imagine that this has pissed off the Christian set.

- Land. It's a little unclear what Chapter Five actually means for land reform, but the section is widely understood to mean that the Constitution empowers government to ensure equitable distribution of land, including reversing some illegitimate purchases (land grabbing) that go back to the post-independence period. Because Kenya has such uneven land distribution, this is of major concern to landholders in the Rift Valley who stand to lose a lot if their sketchy land deals get investigated and possibly invalidated. As a result, Daniel arap Moi and his cronies have been telling Nairobians that if the Constitution passes, Maasai herders will come and seize all their land. Some people actually believe this.

But it's not just the major points of debate that pose problems. Getting a country of almost 40 million people, many of whom don't speak English and have limited schooling (let alone legal education), to understand a massive documents with hundreds of parts is an insurmountable task. As my driver yesterday, Peter, pointed out, he speaks English fluently but doesn't have the legal education to understand what the provisions really mean. ("If you have not been trained in the law, how can you know what this really means?"; "What does it mean if [the Constitution] says 'the government shall do something'? That's in the future."). Of course, there are people on both sides of the debate constantly telling him what it means, but he doesn't trust what they say. So even though he has read parts of the Constitution, he's not even sure he will vote in the end. Peter was most worried about his old grandmother in the village, who doesn't see well and can't speak English; he's concerned that if she tries to vote, the people at the polling station might trick her into picking something she doesn't want. Getting to the polling station is only half the battle.

All the issues inherent in the Constitutional referendum - the high-stakes outcomes, the propaganda, the lack of understanding of its contents, the underlying ethnic tensions - are going to make for an interesting vote next Wednesday. I just hope that no one gets hurt.

* Corruption is generally bad. Transparency International gave Kenya a corruption ranking of 146 out of 180 in 2009. This put it on par with Russia, Zimbabwe and Ecuador.

** There is one notable exception to the unity and uniformity of Tanzania - Zanzibar, which has courts with the jurisdiction to hear Islamic law claims and whose residents tend to vote for minority political parties such as the C.U.F. The Zanzibari exceptionalism enshrined in Tanzania's legal structure stems from the negotiations that took place at the time of union between Zanzibar and Tanganyika, theoretically a merger of two equal sovereign states. It's similar to special legal treatment for Texas or Quebec.

*** For a copy of the draft Constitution, click here: Warning: it's long.

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